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2003 DIGILAW 142 (GAU)

Dewan Joynal Abedin v. Wazed Ali Chaudhury

2003-03-31

P.G.AGARWAL

body2003
Judgement This election petition under Sections 80, 80-A, 81 and 100 of the Representation of the People Act, 1951, for short, the Act, has been preferred by the petitioner Shri Dewan Joynal Abedin, for short, the petitioner, challenging the election of the respondent Shri Wazed Ali Choudhury to the Assam Legislative Assembly in respect of No. 22, South Salmara Constituency, hereinafter referred as the LAC. 2. The election for the No. 22 South Salmare LAC, was held as per the Election Commission Notification dated 31-3-2001 along with the general election to the Assam State Legislative Assembly. The polling was held on 10-5-2001 and the votes were counted on 13-5-2001. Altogether either candidates including the petitioner and the respondent contested the election of the said LAC and as per the result of the election, declared on 14-5-2001, the actual number of votes received by the candidates were as below :- "(1) Wazwd Ali Choudhury 47,329 votes (Respondent) (2) Jahir Uddin 1,933 " (3) Joynal Abendin Bepari 623 " (4) Naser Ali Sheikh 464 " (5) Saikhul Islam 1,691 " (6) Ayesa Khatun 561 " (7) Dewan Joynal Abedin 27,183 " (Petitioner) (8) Motior Rohman 187 " " 3. The petitioner has chellenged the election of the respondent stating inter alia that the respondent has committed corrupt practices by distributing gifts like C.I. Sheets, Cash, Mike set to various Mosques, club etc. to induce the voters to vote for him. It is also alleged that the respondent hired boats for carrying the voters on the polling date free of charges. The respondent also held public meeting on 9-5-2001 and distributed the money to the voters. 4. In exercise of powers under Section 80-A(2) of the Act the election petition was assigned to me by the Honble Chief Justice (Acting). 5. The respondent filed Misc. Case No. 49/2001 for striking out of the pleadings under Order 6, Rule 16 and Order 7, Rule 11, CPC. The said petition was dismissed after hearing both sides vide order dated 22-2-2002. 6. The respondent has filed written statement denying all the allegations made by the petitioner stating inter alia that the elections were held as per the rules and regulations and the electors gave a categorical verdict in his favour. The respondent has specifically denied the allegation of corrupt practice as alleged by the petitioner. 7. 6. The respondent has filed written statement denying all the allegations made by the petitioner stating inter alia that the elections were held as per the rules and regulations and the electors gave a categorical verdict in his favour. The respondent has specifically denied the allegation of corrupt practice as alleged by the petitioner. 7. Upon pleadings of the parties, the following issues were framed :- "(1) Whether the Election Petition is maintainable? (2) Whether the Respondent No. 1 is guilty for the commission of any corrupt practice, as alleged by the Election Petitioner? (3) What relief/reliefs are the parties entitled to?" 8. During trial of the election petition, the petitioner has examined as many as eleven witnesses and produced and exhibited eight numbers of documents. The respondent on the other hand, has examined fifteen witnesses. 9. We have heard the arguments of the learned counsel for both sides. The decisions and reasons thereof :- Issue No. 1 :- The above issue has not been pressed as the maintainability of the election petition was never seriously doubted and we find that the election petition was filed in proper manner within time and in accordance with the law. The issue, therefore, stands answered in favour of the petitioner. Issue No. 2 :- The petitioner has alleged that the respondent had resorted to bribery as defined in Section 123(1) of the Act, by making donations/gifts and cash and kind, during the relevant period, i.e. from the date of Notification till closing of the polling hours. In para 30 of the election petition, the petitioner has stated about as many as 15 instances; but the learned counsel for the petitioner was fair enough to submit that the evidence has been led in respect of the following instances of alleged bribery only. (1) Giving of two bundles of C.I. Sheets to Bamunirpar Mosque. (2) Giving of one Mike set to Abdul Awal for and on behalf of Patakata Unani Club. (3) Cash donation of Rs. 2500/- to Chala Serso Jame Masjid. (4) Giving of two bundles of C.I Sheets to Majer Alga Mosque. 10. (1) Giving of two bundles of C.I. Sheets to Bamunirpar Mosque. (2) Giving of one Mike set to Abdul Awal for and on behalf of Patakata Unani Club. (3) Cash donation of Rs. 2500/- to Chala Serso Jame Masjid. (4) Giving of two bundles of C.I Sheets to Majer Alga Mosque. 10. The election petitioner has no personal knowledge about the above donation and he has relied on the evidence of the witnesses to establish the allegation, P.W. 8 Abdul Quayum has deposed that two Maulavis named Idris and Idris had collected two bundles of C.I. Sheets from the respondent for their Mosque at Bamunipar and requested them to vote for the respondent. The witness has categorically stated in his examination-in-chief itself that he has got no personal knowledge about the alleged delivery of the C.I. sheets to the above Maulavis. 11. The respondent has denied the allegation of giving of C.I. Sheets, Mike set and making of cash donations as alleged by the petitioner. The respondent had also examined Maulavi Idris Ali of Bamnipar, the Imam of the said Masjid and he has categorically stated that during the last general election no candidate had made any promise or donation of C.I. Sheets for the said Mosque. The said witness has categorically denied the suggestion of the petitioner. 12. The petitioner has examined one Kalu Mandal (PW-9) who has deposed that the respondent had donated a Mike set to their club on 29-4-2001 and the said Mike set was used by the Secretary of the club for election campaign of the respondent. The witness in his cross-examination has categorically stated that the Mike set was not given for election propoganda. The respondent has examined one Altaf Hussain Molla, the President of the Patakat Polli Unnayan Youth Club and he has categorically deposed that the respondent did not give any Mike set to their club for inducing them to vote for him. 13. As regards the third instance Gajibur Rahman Sikdar (PW-7) has deposed that a meeting was held in their village on 26-4-2001 wherein the villagers requested the respondent for donation of Rs. 10,000/- for the village Mosque and the respondent, however, paid Rs. 2800/- as the cost of two bundles of C. I. Sheet and also promised to give 15 bags of cement. 10,000/- for the village Mosque and the respondent, however, paid Rs. 2800/- as the cost of two bundles of C. I. Sheet and also promised to give 15 bags of cement. The respondent has denied the holding and attending of any meeting at village Chalaserso on 26-4-2001 and it is submitted that 26-4-2001 was the last date of withdrawal of candidature and the respondent was present at Hatsingimari/Dhubri for the above purpose. The respondent had examined one Abdul Batin Chaudhury, who is a member of the managing committee of Chalaserso mosque. He has categorically deposed that no meeting was held and addressed by the respondent on 26-4-2001 and no cash donation of Rs. 2800/- was made for the said Mosque. The Mosque has got CI sheets roof which was fixed about 15/20 years prior to the election. 14. Md. Salim Uddin (PW-6) had deposed that two days prior to the election the respondent gave one bundle of C.I. Sheet to the Mosque of village Mazher Alga Part IV and sought votes. However, this witness in his cross-examination has stated that the meeting was held 4/5 days prior to the election and the C.I. Sheet was delivered in that meeting; but the respondent was not present in the said meeting. The said witness has stated that he never informed the matter to the petitioner about the donation of C.I. Sheet for the Mosque by the respondent. DW. 12 Sri Abdul Karim is the Secretary of the Majher Alga Part IV Mosque. He has categorically stated that they did not collect out side donations for their Mosque and they had not received any money from any candidate in the last general election. 15. The election petitioner in para-16 of the petition has alleged that on 9-5-2001 at about 10.30 p.m. the respondent openly held public meeting seeking votes at Kalshabhanga L.P. School premises at Porar Char Part I village and distributed money to the voters and paid a sum of Rs. 200/- to one Monowar Hussain the boatmen to arrange votes for carrying voters free of charges which is a corrupt practice as defined under Section 123(5) of the Act. The petitioner led evidence that on the evening of 9-5-2001 one VIP bag containing specimen copies of ballot papers, poster, bottle of mineral water and cash of Rs. 200/- to one Monowar Hussain the boatmen to arrange votes for carrying voters free of charges which is a corrupt practice as defined under Section 123(5) of the Act. The petitioner led evidence that on the evening of 9-5-2001 one VIP bag containing specimen copies of ballot papers, poster, bottle of mineral water and cash of Rs. 30,000/- was seized from one Lal Chand and Moni, the two boatmen of the respondent and in that respect, South Salmara P.S. Case No. 75/2001 was lodged. The seizure of the brief case containing the above is not in dispute. The respondent on the other hand, alleged that the supporters of the petitioner committed dacoity in respect of the above things and filed an FIR which was registered as South Salmara P.S. Case No. 76/2001. Both the cases were investigated and final report was submitted. The seized money was however handed over to the respondent as per order of the Court. Although the petitioner wanted to show that the said money of Rs. 30,000/- was meant for distribution to the voters, in view of the evidence of the Investigating Police Officer who was examined by the petitioner as PW. 10, the counsel for the petitioner was fair enough to submit that the incident which led to the filing of the two cases as stated above, have got no bearing on this election petition. The respondent claimed that the brief case belonged to him and the brief case was lying on the boat in the custody of the two boatmen Lal Chand and Moni and he had gone to the house of Abdul Sattar at Madarchar Damumara along with Safar Uddin and Minhaz Uddin. It is also stated that the money was meant for making payment of the various election expenses after the polling was over on the next day. 16. So far the alleged meeting at Kalchabhanga L.P. School is concerned, the respondent has denied the same by stating that no such meeting was held and the respondent never addressed any such meeting or distributed any money to the voters. 16. So far the alleged meeting at Kalchabhanga L.P. School is concerned, the respondent has denied the same by stating that no such meeting was held and the respondent never addressed any such meeting or distributed any money to the voters. PW-2 Hasem Ali Mollah and PW-3 Abaret Ali Mollah are the two witnesses of the petitioner who have deposed that on getting information, they went to Kalsabhanga L.P. School and found that a meeting is going on being addressed by the respondent and the respondent was distributing money to four persons, namely, Sahidul, Monowar, Khalegue and Mafiz. These were the alleged boatmen to whom the money was given for carrying of voters on the next day. We will revert to the evidence at a later stage but admittedly, P.W. 2 and PW. 3 had not deposed about giving of any money to the voters for inducing them to vote for the respondent. Johirul Islam Bhuyan (PW-4) was the Presiding Officer of No. 85 polling booth and he has deposed about verbal complaint made by PW. 2 and PW. 3 and on 9-5-2001 one Hasem Ali Mollah told him that a meeting was held at Khalsabanga L.P. School by the election candidate Wazed Ali Choudhury. He told him that he was not concerned with holding of meeting and his responsibility was to manage the polling station. The witness has further stated that on the same night, another complaint was made by the respondent regarding the alleged beating and kidnapping of his boatmen. 17. The petitioner had alleged that at the relevant time, the respondent was accompanied by Safar Uddin (DW. 9) and Minhazuddin (DW. 10) who were along with him at Kalshabhanga L.P. School. These two witnesses of the respondent have categorically stated that at the relevant time, they were at the house of aAbdul Sattar which was at a distance of 11/2 furlong from the ghat where they had landed and stated that no such meeting was held at Kalsabhanga L. P. School. To support their evidence the respondent had also examined DW-11 Abdul Sattar who has deposed that at the relevant time, the respondent, DW-9 and DW-10 were present at his place. Thereafter, they came to the ghat and found the boatmen missing etc. 18. The respondent also examined the four boatmen, namely, Monowar Hussain (DW-4), Sahidur Rahman (DW-5), Abdul Khaleque Pradhani (DW-6) and Md. Thereafter, they came to the ghat and found the boatmen missing etc. 18. The respondent also examined the four boatmen, namely, Monowar Hussain (DW-4), Sahidur Rahman (DW-5), Abdul Khaleque Pradhani (DW-6) and Md. Mofiz Uddin Ahmed (DW-7). They have categorically denied about holding and attending of any meeting at Kalshabhanga L.P. School and they have deposed that they were never paid any money by the respondent for carrying voters on the date of polling. They have categorically stated that they charged the usual hire charges from the passengers and they did not carry the passengers free of cost. 19. Section 123(5) of the Act reads as follows :- "(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under sub-section (1) of Section 29 for the poll : Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power : Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause." 20. In this case, none of the witnesses examined by the petitioner has deposed that they went to the polling station by boat without making any payment of fare or the respondent had provided free conveyance facility. PW. 2 claimed to have talked to about 50 voters who are alleged to have enjoyed the free ride but not a single witness has been produced and examined by the petitioner. 21. PW. 2 claimed to have talked to about 50 voters who are alleged to have enjoyed the free ride but not a single witness has been produced and examined by the petitioner. 21. In this case, we find that the petitioner has made some specific allegation as stated above and to support the same, he has examined some witnesses. Admittedly, the petitioner had no personal knowledge about any of the above instances. The allegations have been categorically denied by the respondent and they have led rebuttal evidence. In order to appreciate the evidence on record, it will be appropriate to refer to the observations of the Apex Court in the case of R. Puthunainar Alhithan v. P. H. Pandian, reported in (1996) 3 SCC 624 : ( AIR 1996 SC 1599 ) wherein the Apex Court observed :- "6. Section 3 of the Evidence Act, 1872 provides that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstance of the particular case, to act upon the supposition that it exists; a fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it does not exist; a fact is said to be "not proved" when it is neither proved nor disproved. Therefore, the Court, after considering the evidence before it, either believes the fact to exist or considers its existence so probable as a prudent man ought, under the circumstances available on the facts in the case on hand, to act upon the supposition that the existence of the fact is so probable that a Court can act upon that evidence. 7. In Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi ( 1991 (2) SCC 716 ) (SCC at p. 748, para 37) : (1991 AIR SCW 879 at p. 908), (para 38), this Court had held that : "......inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. 7. In Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi ( 1991 (2) SCC 716 ) (SCC at p. 748, para 37) : (1991 AIR SCW 879 at p. 908), (para 38), this Court had held that : "......inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture." Therefore, we hold that to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference could be drawn. The standard of proof required cannot be put in a straitjacket formula. No mathematical formula can be laid on the degree of proof. The probative value could be gauged from the facts and circumstances in a given case. 9. It is true that the charge of corrupt practice under Section 123 is treated akin to a charge in a criminal trial. The trial of an election petition is like a trial in the criminal case and the burden to prove corrupt practice is on the election petitioner. The doctrine of preponderance of probabilities in a civil action is not extended for proof of corrupt practice. It is not, like a criminal trial, that the accused can always keep mum. In a criminal trial the accused need not lead any defence evidence. It is an optional one. The burden of proof of charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. It is not, like a criminal trial, that the accused can always keep mum. In a criminal trial the accused need not lead any defence evidence. It is an optional one. The burden of proof of charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. But in an election petition when the election petitioner had adduced evidence to prove that the returned candidate had committed corrupt practice, the burden shifts on the returned candidate to rebut the evidence. After its consideration, it is for the Court to consider whether the election petitioner had proved the corrupt practice as alleged against the returned candidate. In view of the findings recorded earlier, it must be concluded that the respondent had established that the appellant had committed corrupt practice under Section 123(6) of the Act and thereby the declaration of the result of the election of the appellant as void is not vitiated by any error of law warranting interference." 22. Considering the evidence adduced by both sides and as stated above, we find that the returned candidate, that is the respondent has led rebuttal evidence rebutting each and every piece of allegation. The rebuttal has come from horse per se mouth. In an election trial, the witnesses appearing for either side will be usually worker, supporter of either party or candidate and the evidence cannot be thrown out on that count. The evidence of both sides suffers from some malice and they cannot be treated as evidence of the interested witnesses. The burden of the respondent is definitely less onerous than that of the petitioner and once he rebutes the evidence of the petitioner side, the Court cannot decide on the basis of preponderance of probability. In the present case, we find that some of the petitioners witnesses had no knowledge about the matter and some of them proceeded to depose on hearsay or alleged reporting or information given to them. Section 100 of the Act enumerates the grounds on which the election of a returned candidate can be declared void by the Court. In the present case, we find that the petitioner has failed to prove or establish that the respondent has indulged in bribery. None of the four instances of giving C.I. Sheets, Mike set etc. or cash donation to the Mosque has been established. In the present case, we find that the petitioner has failed to prove or establish that the respondent has indulged in bribery. None of the four instances of giving C.I. Sheets, Mike set etc. or cash donation to the Mosque has been established. In view of the evidence of DWs. 4, 5, 6 and 7 the allegation of carrying of voters free of hire charge had also not been established. We therefore hold that the petitioner has failed to establish that the respondent had indulged in corrupt practices. The issue is decided in favour of the respondent and against the petitioner. Issue No. 3 :- In view of the decision in Issue No. 2, the petitioner is not entitled to any relief. 23. In view of the above, the election petition is dismissed. In the facts and circumstances of the case, there will be no order as to costs. Petition dismissed.